Appellate Division: Second Judicial Department

M202033

K/sl

REINALDO E. RIVERA, J.P.

L. PRISCILLA HALL

SHERI S. ROMAN

JEFFREY A. COHEN

BETSY BARROS, JJ.

2014-03426 The People, etc., respondent, v Silvio R. Illescas, appellant. (Ind. No. 13-00268)

DECISION & ORDER ON MOTION

Appeal by the defendant from a judgment of the County Court, Westchester County, rendered February 25, 2014. By decision and order of this Court dated March 18, 2015, the matter was remitted to the County Court, Westchester County, for a hearing on the defendant's motion to withdraw his plea of guilty, for which the defendant was to be appointed new counsel, and for a new determination of the motion thereafter. The appeal was held in abeyance pending receipt of a report from the County Court. The County Court has now filed its report. Motion by the defendant to withdraw the appeal.

Upon the report of the County Court, and upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the decision and order of the County Court, Westchester County, entered on July 16, 2015, which was referenced in and attached to the report of the County Court, Westchester County, dated July 21, 2015, is vacated; and it is further,

ORDERED that the matter is remitted to the County Court, Westchester County, for the issuance of a report, forthwith, without any accompanying order, addressing only the defendant's pro se motion, made at the time of sentencing, to withdraw his plea of guilty, as directed in the decision and order of this Court dated March 18, 2015; and it is further,

ORDERED that the appeal shall continue to be held in abeyance pending receipt of the County Court's report; and it is further,

ORDERED that the defendant's motion to withdraw his appeal shall be held in abeyance in the interim.

The decision and order of this Court dated March 18, 2015, remitted the matter to the County Court for the limited purpose of conducting a hearing on the defendant's motion, made at the time of sentencing, to withdraw his plea of guilty. Upon remittitur, the County Court erroneously permitted the defendant to submit an entirely new post-conviction motion to withdraw his plea of guilty and thereafter, issued an order granting that motion. This exceeded the scope of this Court's directive contained in the decision and order dated March 18, 2015, and additionally, was in contravention of CPL 220.60 (3). Accordingly, we must again remit the matter to the County Court, Westchester County, for the issuance of a report, without any accompanying order, specifically limited to and addressing only those issues raised in the defendant's pro se motion, made at the time of sentencing, to withdraw his plea of guilty. There are no other matters to be considered by the County Court upon remittitur.

RIVERA, J.P., HALL, ROMAN, COHEN and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court